David survives encounter with Goliath

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Webmaster Robert Lane of Dearborn, Michigan is "elated" by a federal court decision restoring his right to operate BlueOvalNews.com, a Web site devoted to Ford automobiles and their various shortcomings. The company had sought a restraining order to shut down the site after accusing Lane of publishing its trade secrets, but US District Court Judge Nancy Edmunds found that the First Amendment trumps Ford's commercial concerns, and denied the request. Ford argued that Michigan's Uniform Trade Secrets Act would prohibit Lane from publishing its proprietary blueprints, market strategies and test data. The judge found, however, that in order to invoke the Act, Ford would have to prove that Lane "knows or has reason to know that the trade secret was acquired by improper means" or, alternatively, had himself "used improper means to acquire knowledge of the trade secret." The company clearly failed to meet its burden of proof under the Michigan Act, but the judge did require Lane to reveal his sources. This proviso is something of a consolation prize for Ford, which has got to be anxious to identify the mole who has been leaking the goods. Not that it will do the company much good: Lane "can testify truthfully that he doesn't know the source of the documents he posted," his lawyer, Mark Pickerell, told The Register. With the Michigan Act out of the way, Lane's next hurdle was the issue of copyright infringement. Here things were a bit stickier. The fair use exception to the Copyright Act does permit publication of copyrighted material for comparison or criticism; but normally, such material is quoted in part, not reproduced in whole as Lane had done. Here the First Amendment came into play. Edmunds ruled that constitutional prohibitions on prior restraint are enough to keep Lane out of the hot seat for his previous wholesale postings, which she admits were a bit over the top. In future he is not to publish entire documents which Ford has copyrighted, however. Lane will have to be satisfied with the normal liberties available to all American journalists: to quote passages from a copyrighted document and fill in the blanks with his own commentary. "To justify prior restraint on speech, 'publication must threaten an interest more fundamental than the First Amendment itself,'" Edmunds noted, referring to several earlier cases. "Although there are distinctions one can draw between the case brought by Ford and the existing precedent on prior restraint, those distinctions are defeated by the strength of the First Amendment," she concluded. Edmunds added that prior restraint is not justified according to legal precedent, even when documents are obtained illegally. A journalist may be prosecuted for obtaining information improperly if he breaks the law in doing so, but that would be a separate action; he is entitled to publish what he will regardless of how he comes by it. For all the attention this case has attracted, it boils down to a judge affirming a journalist's right to do what the First Amendment empowers journalists to do. It breaks no constitutional ground; it sets no precedents. Edmunds has defended the status quo, much to the relief of reporters and publishers throughout the USA. ®